{ "id": 4160102, "name": "STATE OF NORTH CAROLINA v. LEKKIE CONSTANTINE WILSON", "name_abbreviation": "State v. Wilson", "decision_date": "2008-09-02", "docket_number": "No. COA07-1077", "first_page": "359", "last_page": "376", "citations": [ { "type": "official", "cite": "192 N.C. App. 359" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "392 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "363-64", "parenthetical": "holding that the State could not meet its burden of proving harmless constitutional error where the record did not disclose the substance of the trial court's unrecorded conversations with potential jurors" }, { "page": "364" } ], "opinion_index": 0 }, { "cite": "326 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309049 ], "year": 1990, "pin_cites": [ { "page": "795", "parenthetical": "holding that the State could not meet its burden of proving harmless constitutional error where the record did not disclose the substance of the trial court's unrecorded conversations with potential jurors" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0792-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6266778, 6268507, 6267902 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-01", "/us/497/1021-07", "/us/497/1021-05" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "321 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570712 ], "year": 1989, "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0001-01" ] }, { "cite": "545 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416", "parenthetical": "holding that where a juror became disqualified during deliberations due to his own misconduct, the jury was rendered \"improperly constituted\" under Article I, Section 24 and the defendant was automatically entitled to a new trial" } ], "opinion_index": 0 }, { "cite": "353 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135922 ], "year": 2001, "pin_cites": [ { "page": "444", "parenthetical": "holding that where a juror became disqualified during deliberations due to his own misconduct, the jury was rendered \"improperly constituted\" under Article I, Section 24 and the defendant was automatically entitled to a new trial" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0440-01" ] }, { "cite": "220 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "year": 1975, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] }, { "cite": "485 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1997, "pin_cites": [ { "page": "291" }, { "page": "292" }, { "page": "292" }, { "page": "293" } ], "opinion_index": 0 }, { "cite": "346 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139641 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0253-01" ] }, { "cite": "185 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1971, "pin_cites": [ { "page": "192" }, { "page": "192-93" }, { "page": "193" } ], "opinion_index": 0 }, { "cite": "280 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569839 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0074-01" ] }, { "cite": "377 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding, on similar facts to McLaughlin, that there was no constitutional error because \"the judge did not communicate with less than all jurors\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485024, 2487978, 2486430, 2485878 ], "year": 1989, "pin_cites": [ { "parenthetical": "holding, on similar facts to McLaughlin, that there was no constitutional error because \"the judge did not communicate with less than all jurors\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0249-04", "/nc/324/0249-01", "/nc/324/0249-02", "/nc/324/0249-03" ] }, { "cite": "374 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526546 ], "year": 1988, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0152-01" ] }, { "cite": "359 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1987, "pin_cites": [ { "page": "770" }, { "page": "771" }, { "page": "771" }, { "page": "772" } ], "opinion_index": 0 }, { "cite": "320 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725856 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0564-01" ] }, { "cite": "418 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "473", "parenthetical": "explaining the basis of the Tate decision" }, { "page": "473" }, { "page": "474" } ], "opinion_index": 0 }, { "cite": "332 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508136 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "104-05", "parenthetical": "explaining the basis of the Tate decision" }, { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0101-01" ] }, { "cite": "239 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "827" }, { "page": "827" } ], "opinion_index": 0 }, { "cite": "294 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572308 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "197-98" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0189-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 15, "year": 1985, "pin_cites": [ { "page": "659", "parenthetical": "holding that \"[w]here . . . the error violates [the] defendant's right to a trial by a jury of twelve, [the] defendant's failure to object is not fatal to his right to raise the question on appeal\"" }, { "page": "659" }, { "page": "655" }, { "page": "656" }, { "page": "653" }, { "page": "657" }, { "page": "657" }, { "page": "657" }, { "page": "659" }, { "page": "657" }, { "page": "657-59" }, { "page": "658-59" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "39", "parenthetical": "holding that \"[w]here . . . the error violates [the] defendant's right to a trial by a jury of twelve, [the] defendant's failure to object is not fatal to his right to raise the question on appeal\"" }, { "page": "39" }, { "page": "33" }, { "page": "35-36" }, { "page": "35-36" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "464 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "342 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796062 ], "year": 1995, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0357-01" ] }, { "cite": "644 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638295 ], "year": 2007, "pin_cites": [ { "page": "205", "parenthetical": "\"This Court has tended to invoke [Appellate] Rule 2 for the prevention of 'manifest injustice' in circumstances in which substantial rights of [a criminal defendant] are affected.\" (Citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/se2d/644/0201-01" ] }, { "cite": "648 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639123 ], "year": 2007, "pin_cites": [ { "page": "807" } ], "opinion_index": 1, "case_paths": [ "/se2d/648/0788-01" ] }, { "cite": "227 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1976, "pin_cites": [ { "page": "559", "parenthetical": "internal citations omitted" }, { "page": "634" }, { "page": "559" }, { "parenthetical": "citations omitted" }, { "page": "559" }, { "page": "559" } ], "opinion_index": 1 }, { "cite": "290 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562843 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "633-34", "parenthetical": "internal citations omitted" }, { "page": "633-34" }, { "page": "633-34" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0628-01" ] }, { "cite": "294 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "opinion_index": 1 }, { "cite": "306 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572675, 8572708, 8572657, 8572754, 8572732 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/306/0561-02", "/nc/306/0561-03", "/nc/306/0561-01", "/nc/306/0561-05", "/nc/306/0561-04" ] }, { "cite": "291 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "862" }, { "page": "862" } ], "opinion_index": 1 }, { "cite": "57 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524700 ], "weight": 2, "pin_cites": [ { "page": "421" }, { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/nc-app/57/0416-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quotation omitted" }, { "page": "378", "parenthetical": "quotation omitted" }, { "page": "378", "parenthetical": "quotation omitted" } ], "opinion_index": 1 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quotation omitted" }, { "page": "660" }, { "page": "660" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "148 L. Ed. 2d 543", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 1 }, { "cite": "531 U.S. 1041", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9686561, 9686594, 9686466, 9686519, 9686405, 9686374, 9686629, 9686666, 9686444, 9686703, 9686422, 9686390, 9686490 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/us/531/1041-09", "/us/531/1041-10", "/us/531/1041-06", "/us/531/1041-08", "/us/531/1041-03", "/us/531/1041-01", "/us/531/1041-11", "/us/531/1041-12", "/us/531/1041-05", "/us/531/1041-13", "/us/531/1041-04", "/us/531/1041-02", "/us/531/1041-07" ] }, { "cite": "143 L. Ed. 2d 1036", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 1 }, { "cite": "526 U.S. 1147", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11211492, 11211525, 11211430, 11211835, 11211690, 11212171, 11211212, 11212111, 11211570, 11211635, 11212021, 11211349, 11211735, 11211896, 11211259 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/us/526/1147-05", "/us/526/1147-06", "/us/526/1147-04", "/us/526/1147-11", "/us/526/1147-09", "/us/526/1147-15", "/us/526/1147-01", "/us/526/1147-14", "/us/526/1147-07", "/us/526/1147-08", "/us/526/1147-13", "/us/526/1147-03", "/us/526/1147-10", "/us/526/1147-12", "/us/526/1147-02" ] }, { "cite": "505 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 1 }, { "cite": "349 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571552 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc/349/0062-01" ] }, { "cite": "528 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "578" } ], "opinion_index": 1 }, { "cite": "351 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155910 ], "pin_cites": [ { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0562-01" ] }, { "cite": "361 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3746530 ], "year": 2007, "pin_cites": [ { "page": "316", "parenthetical": "\"This Court has tended to invoke [Appellate] Rule 2 for the prevention of 'manifest injustice' in circumstances in which substantial rights of [a criminal defendant] are affected.\" (Citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0309-01" ] }, { "cite": "170 L. Ed. 2d 760", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 1 }, { "cite": "361 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738089 ], "year": 2007, "pin_cites": [ { "page": "469" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0438-01" ] }, { "cite": "239 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1978, "pin_cites": [ { "page": "827" }, { "page": "827", "parenthetical": "citations omitted" }, { "page": "827" }, { "page": "827" } ], "opinion_index": 1 }, { "cite": "294 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572308 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "197" }, { "page": "198" }, { "page": "198" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0189-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "657" }, { "page": "659" }, { "page": "659" }, { "page": "656" } ], "opinion_index": 1 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "36" }, { "page": "40" }, { "page": "33" } ], "opinion_index": 1, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "464 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "293" } ], "opinion_index": 1 }, { "cite": "342 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796062 ], "year": 1995, "pin_cites": [ { "page": "364" } ], "opinion_index": 1, "case_paths": [ "/nc/342/0357-01" ] } ], "analysis": { "cardinality": 1106, "char_count": 37915, "ocr_confidence": 0.745, "pagerank": { "raw": 6.497341544922815e-08, "percentile": 0.3997812227662694 }, "sha256": "2ac475a7d491c5cb1b9bc9e71029e02aa3feb162e0991d5f1d1eeb13545db34e", "simhash": "1:072ac56e760f1cd4", "word_count": 6293 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. LEKKIE CONSTANTINE WILSON" ], "opinions": [ { "text": "McGEE, Judge.\nA jury found Lekkie Constantine Wilson (Defendant) guilty on 2 February 2007 of armed robbery and conspiracy to commit armed robbery. The trial court arrested judgment on the conspiracy charge and sentenced Defendant to a term of forty-eight to sixty-eight months in prison on the armed robbery charge.\nThe State\u2019s evidence at trial tended to show that Defendant\u2019s wife worked at a gas station in Newport, North Carolina. Tavoris Courtney (Mr. Courtney) testified that he and Defendant decided to rob the gas station on 16 October 2005. Defendant was familiar with the layout of the gas station and told Mr. Courtney where the safe and security cameras were located. Mr. Courtney testified that he entered the gas station, pointed a gun at the clerk, and demanded money from the safe. After the robbery, Mr. Courtney ran across the street and got into Defendant\u2019s vehicle, and Defendant drove away.\nDefendant\u2019s evidence at trial tended to show that Mr. Courtney received a reduced bond and other incentives in return for his cooperation with police. Defendant also pointed to inconsistencies in certain portions of the State\u2019s evidence. Defendant did not testify at trial.\nThe jury began its deliberations at 3:25 p.m. on 1 February 2007. Twenty minutes later, the bailiff informed the trial court that there had been a knock on the jury room door, and that \u201cthere is some issue with the foreperson that needs to be addressed on the record.\u201d The trial court, without objection, summoned the foreperson to discuss the issue. The following exchange occurred:\nTHE COURT: It\u2019s my understanding there may be some issue you may need to address and to the extent you\u2019re comfortable telling me, can you tell me what [the] nature of the concern is?\nFOREPERSON: They seem to think that I already have my mind made up.\nTHE COURT: You come here and if counsel will come up here, please.\nThe trial court conducted an unrecorded bench conference with the foreperson and counsel for both the State and Defendant. Following this conference, the trial court asked the foreperson to step aside, and the trial court conducted another unrecorded bench conference with both counsel. The following exchange then occurred in open court:\nTHE COURT: [T]o make sure I understand then, there is an issue that has arisen regarding your opinion about the case basically, is that right?\nFOREPERSON: Yes.\nTHE COURT: Issue between you and the other jurors?\nFOREPERSON: Yes.\nTHE COURT: This is an issue that I believe you and the other jurors need to handle in the jury room.\nFOREPERSON: I need to say one more thing.\nTHE COURT: Yes, sir. Go on.\nFOREPERSON: I can\u2019t. ...\nTHE COURT: All right. Come up.\nThe trial court then conducted a second unrecorded bench conference with the foreperson and both counsel. The trial court then summoned the remaining eleven jurors and conducted another unrecorded bench conference with both counsel.\nWhen all twelve jurors were present, the trial court gave the jury an Allen instruction. See N.C. Gen. Stat. \u00a7 15A-1235(b)-(c) (2007). The trial court then instructed the jurors, with the exception of the foreperson, to return to the jury room but not to resume deliberations. After the eleven jurors left the courtroom, the trial court conducted a third unrecorded bench conference with the foreperson and both counsel. The following exchange next occurred in open court:\nTHE COURT: All right. [Foreperson, there is] one other instruction I want to give you first and then have the other jurors come back out. The issues about which we had talked in this courtroom, both here at the bench and also openly on the record, are issues that you are not to share with the other jurors and I do not wish for you to go back in there and somehow talk about what we talked about here or anything else. Do you understand that?\nFOREPERSON: Yes, sir.\nTHE COURT: It\u2019s my understanding based on what you have said up here that I do believe you can continue to be a fair and impartial juror in this case, consider the evidence you\u2019ve heard, the contentions of counsel, instructions of the court and proceed accordingly, is that correct?\nFOREPERSON: Yes, sir.\nTHE COURT: And at this time, do you know of any reason why you cannot continue as a juror in this case?\nFOREPERSON: No, sir.\nThe trial court summoned the remaining eleven jurors, and when they were all present in the courtroom, the trial court instructed the jury to resume its deliberations. The jury returned its verdicts the following day. Defendant appeals.\nDefendant argues, inter alia, that the trial court\u2019s unrecorded bench conferences with the jury foreperson violated Defendant\u2019s right to a unanimous jury under Article I, Section 24 of the North Carolina Constitution. See N.C. Const, art. I, \u00a7 24 (stating that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court\u201d).\nA.\nThe State first contends that Defendant has not preserved his arguments for appeal because Defendant did not object to the trial court\u2019s unrecorded conversations with the jury foreperson at trial. See N.C.R. App. P. 10(b)(1) (stating that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion\u201d).\nIt is true that our Court generally does not review constitutional arguments for the first time on appeal. See, e.g., State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995). However, our Supreme Court has previously recognized an exception to this rule where a defendant alleges a violation of Article I, Section 24. See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (holding that \u201c[w]here . . . the error violates [the] defendant\u2019s right to a trial by a jury of twelve, [the] defendant\u2019s failure to object is not fatal to his right to raise the question on appeal\u201d).\nThe State correctly notes that in State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978), our Supreme Court held that the defendant\u2019s failure to object at trial precluded the defendant from challenging on appeal the trial court\u2019s off-record bench conferences with two jurors. Id. at 197-98, 239 S.E.2d at 827. The defendant in Tate, however, did not claim a violation of his rights under Article I, Section 24. Rather, the Tate defendant argued that the trial court\u2019s unrecorded bench conferences with the two jurors violated the defendant\u2019s confrontation rights under Article I, Section 23 of the North Carolina Constitution. See State v. Boyd, 332 N.C. 101, 104-05, 418 S.E.2d 471, 473 (1992) (explaining the basis of the Tate decision). Because Tate was a noncapital prosecution, our Supreme Court held that the defendant waived his constitutional argument by failing to object to the alleged error at trial. Id.; see Tate, 294 N.C. at 197-98, 239 S.E.2d at 827.\nIn contrast with Tate, Defendant in the present case argues that the trial court\u2019s unrecorded bench conversations with the jury foreperson violated Defendant\u2019s right to a unanimous jury under Article I, Section 24. Our Supreme Court\u2019s decision in Ashe makes clear that such error is preserved for appellate review even without objection at trial. See Ashe, 314 N.C. at 39, 331 S.E.2d at 659. We therefore hold that Defendant is entitled to appellate review of his constitutional argument.\nB.\nWe next consider whether the trial court violated Defendant\u2019s rights under Article I, Section 24 when it held unrecorded bench conferences with the jury foreperson.\nOur Courts have recognized that a conviction cannot be based on a \u201cunanimous verdict of a jury,\u201d as required by Article I, Section 24, where the trial court does not provide the same instructions to all twelve jurors. In Ashe, for example, the jury foreperson returned alone to the courtroom over an hour after the jury retired for deliberations. Ashe, 314 N.C. at 33, 331 S.E.2d at 655. The foreperson informed the trial court that the jury wished to review certain portions of the transcript. Id. at 33, 331 S.E.2d at 656. The trial court responded, \u201cI\u2019ll have to give you this instruction. There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree upon that recollection in your deliberations.\u201d Id. The jury later found the defendant guilty of first-degree murder. Id. at 29, 331 S.E.2d at 653.\nOn appeal, our Supreme Court found that the trial court violated N.C. Gen. Stat. \u00a7 15A-1233(a) by failing to respond to the jury\u2019s request with the entire jury present. Id. at 35, 331 S.E.2d at 657; see N.C. Gen. Stat. \u00a7 15A-1233(a) (2007) (stating that \u201c[i]f the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom,\u201d at which point the trial court may respond to the jury\u2019s request). In addition to the statutory violation, the Court also agreed with the defendant that \u201c[a] defendant, having the right to a trial by a jury of twelve, has the right to have all twelve jurors instructed consistently.\u201d Ashe, 314 N.C. at 35-36, 331 S.E.2d at 657. According to the Supreme Court:\nOur jury system is designed to insure that a jury\u2019s decision is the result of evidence and argument offered by the contesting parties under the control and guidance of an impartial judge and in accord with the judge\u2019s instructions on the law. All these elements of the trial should be viewed and heard simultaneously by all twelve jurors. To allow a jury foreman, another individual juror, or anyone else to communicate privately with the trial court regarding matters material to the case and then to relay the court\u2019s response to the full jury is inconsistent with this policy.\nId. at 36, 331 S.E.2d at 657. The Supreme Court therefore found that because the N.C.G.S. \u00a7 15A-1233(a) violation resulted in the jury being inconsistently instructed, such violation also constituted a violation of the defendant\u2019s right to a trial by a unanimous jury under Article I, Section 24. Id. at 39, 40, 331 S.E.2d at 659.\nSubsequent case law has made clear that this type of Article I, Section 24 violation occurs only when certain jurors receive one set of instructions and other jurors receive a different set of instructions. In State v. McLaughlin, 320 N.C. 564, 359 S.E.2d 768 (1987), for example, the jury sent the trial court a note asking to review a portion of the trial testimony. Id. at 567, 359 S.E.2d at 770. The trial court denied the jury\u2019s request and asked the bailiff to inform the jury that their request had been denied. Id. at 567-68, 359 S.E.2d at 771. On appeal, our Supreme Court agreed with the defendant that the trial court violated N.C.G.S. \u00a7 15A-1233(a) by failing to bring the jury back to the courtroom to respond to its inquiry. Id. at 568, 359 S.E.2d at 771. However, the Court disagreed with the defendant that the statutory error also amounted to constitutional error. Id. Unlike in Ashe, where the trial court gave certain instructions to less than twelve jurors, the trial court in McLaughlin gave its instruction to all twelve jurors, albeit in a manner prohibited by statute. Id. at 570, 359 S.E.2d at 772. Therefore, in McLaughlin, \u201c[t]here was ... no violation of the unanimity provision of Article I, section 24.\u201d Id. See also State v. Colvin, 92 N.C. App. 152, 159, 374 S.E.2d 126, 131 (1988), cert, denied, 324 N.C. 249, 377 S.E.2d 758 (1989) (holding, on similar facts to McLaughlin, that there was no constitutional error because \u201cthe judge did not communicate with less than all jurors\u201d).\nIn the present case, the trial court gave at least one critical instruction to the jury foreperson that it did not give to the rest of the jury. The transcript indicates that after the jury deliberated for roughly twenty minutes, eleven jurors ejected their foreperson due to concerns regarding the foreperson\u2019s impartiality. The trial court specifically instructed the foreperson that \u201c[t]his is an issue that I believe you and the other jurors need to handle in the jury room.\u201d The trial court did not instruct the remaining jurors that their concern regarding the foreperson was an issue that the jury was required to \u201chandle in the jury room,\u201d although the Court clearly believed that all twelve jurors had a duty to resolve the issue.\nFurther, the transcript indicates that the trial court likely provided instructions to the jury foreperson at some point during the three unrecorded bench conferences. Immediately following the third unrecorded bench conference, the trial court informed the foreperson that there was \u201cone other instruction\u201d that the trial court wanted to give to the foreperson. This statement by the trial court indicates that the trial court had previously instructed the foreperson concerning one or multiple other issues, the nature of which do not appear on the record. The trial court then instructed the foreperson that the foreperson was not to discuss with the remaining eleven jurors \u201c[t]he issues about which we had talked about in this courtroom, both here at the bench and also openly on the recordf.]\u201d This statement demonstrates not only that the trial court did not want the remaining eleven jurors to be privy to the information the foreperson received during the unrecorded bench conferences, but also that the trial court did not want the foreperson to communicate the trial court\u2019s prior instruction that the jurors \u201chandle in the jury room\u201d their concerns regarding the foreperson.\nThis record demonstrates that the trial court did not instruct all twelve jurors consistently. Defendant was entitled to a consistently-instructed jury under Article I, Section 24. We therefore find constitutional error in the trial court\u2019s on-record and off-record conversations with the jury foreperson.\nC.\nDefendant next argues that the violation of his right to a unanimous jury under Article I, Section 24 was structural error mandating a new trial.\nOur Courts have previously held that certain violations of Article I, Section 24 are so fundamental that harmless error analysis is inappropriate and automatic reversal is required. In State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), a juror became ill during trial and was excused from service. Id. at 78, 185 S.E.2d at 192. The defendant waived his right to a trial by twelve jurors and allowed the remaining eleven jurors to determin\u00e9 his guilt or innocence. Id. Our Supreme Court held that despite the defendant\u2019s at-trial waiver, Article I, Section 24 required a jury composed of twelve jurors, and any conviction returned by fewer than twelve jurors was a nullity. Id. at 79-80, 185 S.E.2d at 192-93. The Court therefore remanded the case for a new trial. Id. at 80, 185 S.E.2d at 193.\nSimilarly, in State v. Bunning, 346 N.C. 253, 485 S.E.2d 290 (1997), a juror became ill during sentencing deliberations and was replaced with an alternate juror. Id. at 255, 485 S.E.2d at 291. Our Supreme Court found a violation of Article I, Section 24, stating that \u201celeven jurors fully participating] in reaching a verdict, and two jurors participating] partially in reaching a verdict. ... is not the twelve jurors required to reach a valid verdict in a criminal case.\u201d Id. at 256, 485 S.E.2d at 292. The Court then determined whether harmless error analysis was appropriate:\nThe State contends that if there is error, we should apply a harmless error analysis. This we cannot do. A trial by jury which is improperly constituted is so fundamentally flawed that the verdict cannot stand. In order to determine whether there was prejudice, any hearing would \u201cinvade]] the sanctity, confidentiality, and privacy of the jury process,\u201d which we should not do.\nId. at 257, 485 S.E.2d at 292 (quoting State v. Bindyke, 288 N.C. 608, 627, 220 S.E.2d 521, 533 (1975)). The Court therefore remanded the case for a new sentencing trial. Id. at 257, 485 S.E.2d at 293; see also State v. Poindexter, 353 N.C. 440, 444, 545 S.E.2d 414, 416 (2001) (holding that where a juror became disqualified during deliberations due to his own misconduct, the jury was rendered \u201cimproperly constituted\u201d under Article I, Section 24 and the defendant was automatically entitled to a new trial).\nOur Courts have also held, however, that other violations of Article I, Section 24 are subject to harmless error analysis. In Ashe, for example, our Supreme Court held that the trial court violated Article I, Section 24 by giving the jury foreperson an instruction and having the foreperson relay the instruction to the jury, rather than instructing all twelve jurors at once. According to the Court, Article I, Section 24 guaranteed the defendant \u201cthe right to have all twelve jurors instructed consistently,\u201d and the possibility of miscommunication between the foreperson and the rest of the jury regarding the additional instruction deprived the defendant of this right. Ashe, 314 N.C. at 35-36, 331 S.E.2d at 657. Nonetheless, the Court applied a harmless error test to determine whether the defendant was entitled to a new trial. Id. 'at 36-39, 331 S.E.2d at 657-59. The Court found that because it was impossible to know whether the foreperson had accurately relayed the trial court\u2019s instruction to the rest of the jury, the State could not demonstrate that the trial court\u2019s error was harmless, and the defendant was entitled to a new trial. Id. at 38-39, 331 S.E.2d at 658-59.\nThese cases demonstrate that a violation of Article I, Section 24 requires automatic reversal only where a jury was \u201cimproperly constituted\u201d in terms of its numerical composition. In other words, where the verdict was rendered by a jury of less than twelve fully-participating jurors, as in Hudson, Bunning, and Poindexter, the verdict is a nullity. However, Ashe demonstrates that a violation of Article I, Section 24 is subject to harmless error review where the error did not affect the numerical structure of the jury, but rather resulted in jurors acting on unequal instructions from the trial court in reaching a verdict.\nIn the current case, Defendant\u2019s jury was not \u201cimproperly constituted\u201d from a numerical standpoint. Rather, eleven jurors received one set of instructions from the trial court, and one juror received a different set of instructions from the trial court. This type of violation of Article I, Section 24 is not structural error mandating reversal. We therefore apply harmless error analysis to determine whether Defendant is entitled to a new trial.\nD.\nWhen a defendant demonstrates an at-trial violation of his rights under the North Carolina Constitution, we may sustain the defendant\u2019s conviction only if the State proves beyond a reasonable doubt that the error in the defendant\u2019s case was harmless. State v. Huff, 321 N.C. 1, 34-35, 381 S.E.2d 635, 654 (1989), vacated on unrelated grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990).\nIn the present case, a serious issue arose during jury deliberations that called into question the jury foreperson\u2019s ability to determine Defendant\u2019s guilt or innocence. The trial court gave the foreperson instructions on how the jury should handle the issue, but it did not give the remaining jurors similar guidance. We are unable to determine what effect this error had on the jury\u2019s final determination of Defendant\u2019s guilt or innocence, and we therefore hold that the State has not met its burden in this case.\nFurther, we have previously held that where a trial court\u2019s unrecorded conference with a juror results in constitutional error, the State can meet its burden only if the record reveals the substance of the conversation, or if the conversation is adequately reconstructed at trial, and the error proves to be harmless. In Boyd, for example, our Supreme Court held that the trial court violated the defendant\u2019s right of confrontation by holding unrecorded bench conferences with prospective jurors. Boyd, 332 N.C. at 104-05, 418 S.E.2d at 473. The Court then determined that the defendant was entitled to a new trial:\nWhere . . . the transcript reveals the substance of the [unrecorded] conversations, or the substance is adequately reconstructed by the trial judge at trial, we have been able to conclude that the error was harmless beyond a reasonable doubt.\nHere, the substance of the conversation between the trial judge and the excused juror is not revealed by the transcript nor did the trial judge reconstruct it at trial. The State, therefore, cannot demonstrate the harmlessness of the error beyond a reasonable doubt; and [the] defendant must be given a new trial.\nId. at 106, 418 S.E.2d at 474. See also, e.g., State v. Smith, 326 N.C. 792, 795, 392 S.E.2d 362, 363-64 (1990) (holding that the State could not meet its burden of proving harmless constitutional error where the record did not disclose the substance of the trial court\u2019s unrecorded conversations with potential jurors).\nIn the present case, the transcript does not disclose the content of the trial court\u2019s unrecorded bench conferences with the jury foreperson, nor did the trial court reconstruct the substance of those conferences for the record. Without a record of the trial court\u2019s conversations with the jury foreperson, \u201cwe cannot exercise meaningful appellate review\u201d and are constrained to hold that the State has failed to meet its burden. Id. at 795, 392 S.E.2d at 364. Defendant is therefore entitled to a new trial.\nDefendant also assigns error to certain additional jury instructions given by the trial court, and to the trial court\u2019s entry of a restitution award in favor of the State. We do not expect that these issues are likely to recur upon retrial, and we therefore decline to address these arguments.\nNew trial.\nJudge STEPHENS concurs.\nJudge TYSON dissents with a separate opinion.\n. While the case law cited above demonstrates that some types of Article I, Section 24 violations are structural and others are not, Ashe demonstrates that even non-structural violations of Article I, Section 24 are automatically preserved for appellate review. See Ashe, 314 N.C. at 39, 331 S.E.2d at 659.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion grants Lekkie Constantine Wilson (\u201cdefendant\u201d) a new trial based on the trial court\u2019s conferences with only the jury foreman. I disagree and respectfully dissent.\nI. Waiver\nThe majority\u2019s opinion correctly notes that \u201cour Court generally does not review constitutional arguments for the first time on appeal.\u201d (Citing State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995)). Yet, the majority\u2019s opinion holds defendant preserved his constitutional argument that the trial court erred when it held \u201cunrecorded\u201d conversations with the jury foreman, even though-defendant failed, to object at trial. The majority\u2019s opinion incorrectly relies on our Supreme Court\u2019s opinion in State v. Ashe as a basis for this holding. 314 N.C. 28, 331 S.E.2d 652 (1985).\nIn Ashe, our Supreme Court held that N.C. Gen. Stat. \u00a7 15A-1233(a) \u201crequires all jurors to be returned to the courtroom when the jury \u2018requests a review of certain testimony or other evidence.\u2019 \u201d 314 N.C. at 36, 331 S.E.2d at 657. Our Supreme Court stated:\nBoth Art. I, \u00a7 24 of the North Carolina Constitution and N.C.G.S. \u00a7 15A-7l233(a) require the trial court to summon all jurors into the courtroom before hearing and addressing a jury request to review testimony and to exercise its discretion in denying or granting the request. Under the principles stated above, failure of the trial court to comply with these statutory mandates entitles defendant to press these points on appeal, notwithstanding a failure to object at trial.\nId. at 40, 331 S.E.2d at 659.\nOur Supreme Court\u2019s holding in Ashe is simply not applicable to the facts at bar. 314 N.C. at 40, 331 S.E.2d at 659. Here, the trial court did not give an individual explanatory instruction to the foreman after a request to review testimony, as was the case in Ashe. 314 N.C. at 33, 331 S.E.2d at 656. The trial court merely spoke with the foreman after he stated, \u201c[the other jurors] seem to think that I already have my mind made up.\u201d The trial court conducted all conversations with the foreman in the presence of and without objection from counsel for both the State and defendant.\nOur Supreme Court\u2019s holding in State v. Tate is controlling precedent based on the facts at bar. 294 N.C. 189, 239 S.E.2d 821 (1978). In Tate, \u201cjurors asked, or started to ask, questions addressed to the [trial] court. In [both instances, the trial court] directed the juror to approach the bench and a private discussion between the judge and juror ensued.\u201d 294 N.C. at 197, 239 S.E.2d at 827. Our Supreme Court stated:\nWe are of the opinion that the trial court\u2019s private conversations with jurors were ill-advised. The practice is disapproved. At least, the questions and the court\u2019s response should be made in the presence of counsel. The record indicates, however, that defendant did not object to the procedure or request disclosure of the substance of the conversation. Failure to object in apt time to alleged procedural irregularities or improprieties constitutes a waiver.\nId. at 198, 239 S.E.2d at 827 (citations omitted) (emphasis supplied).\nBased on our Supreme Court\u2019s holding in Tate, defendant\u2019s failure to object to the trial court\u2019s conversation with the foreman outside the presence of the other eleven jurors, waived his right to appeal this alleged error. 294 N.C. at 198, 239 S.E.2d at 827. Having determined defendant waived his right to appeal this assignment of error, the issue becomes whether this Court may review defendant\u2019s assignment of error under plain error review.\nII. Plain Error Review\nIn State v. Cummings, our Supreme Court stated: \u2022\nIn criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule of law without any such action may still be the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error. See N.C. R. App. P. 10(c)(4). When a defendant does not allege plain error, the question may still be reviewed in the exercise of the Court\u2019s discretion. See N.C. R. App. P. 2.\n361 N.C. 438, 469, 648 S.E.2d 788, 807 (2007), cert, denied, - U.S. -, 170 L. Ed. 2d 760 (2008).\nAs defendant failed to object to the-trial court\u2019s conversations with the foreman or to assert or argue plain error to this Court, this issue is not properly preserved for appellate review. N.C.R. App. P. 10(c)(4) (2007). Appellate Rule 2 is the sole basis to review this issue and may only be invoked to prevent \u201cmanifest injustice\u201d to defendant. N.C.R. App. P. 2 (2007); see State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (\u201cThis Court has tended to invoke [Appellate] Rule 2 for the prevention of \u2018manifest injustice\u2019 in circumstances in which substantial rights of [a criminal defendant] are affected.\u201d (Citations omitted)).\nA. Standard of Review\n\u201c[P]lain error analysis applies only to instructions to the jury and evidentiary matters.\u201d State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (citing State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)), cert, denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000). \u201cThe plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, ... it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted).\nB. Analysis\nThe foreman approached the court to convey that the other jurors had expressed a belief that he had already made up his mind. With counsel for both parties present at all times, the trial court told the foreman that \u201c[t]he issues about which we had talked in this courtroom, both here at the bench and also openly on the record, are issues that you are not to share with the other jurors . . . .\u201d The trial court then stated that it believed the foreman could \u201ccontinue to be a fair and impartial juror\u201d and the foreman agreed that there was no \u201creason why [he could not] continue as a juror in this case[.]\u201d\nBased on the totality of the trial court\u2019s conversations with the foreman, it cannot be said that the trial court\u2019s conversation with the foreman was an \u201cinstruction\u201d or, if so, that \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that . . . defendant was guilty\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quotation omitted). This assignment of error should be overruled. Having determined that this assignment of error should be overruled, I review defendant\u2019s remaining assignments of error.\nIII. N.C. Gen. Stat. $ 15A-1235\nDefendant argues that the trial court committed plain error when it \u201comitt[ed] critical language from [the N.C. Gen. Stat. \u00a7 15A-1235] jury instruction . ...\u201d I disagree.\nN.C. Gen. Stat. \u00a7 15A-1235(b) (2007) states:\nBefore the jury retires for deliberation, the judge may give an instruction which informs the jury that:\n(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if-it can be done without violence to individual judgment;\n(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;\n(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and\n(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\nDefendant argues the trial court committed plain error when it gave the following instruction to the jury:\nYou all have a duty to consult with one another and deliberate with a view toward reaching an agreement, if it can be done without violence to individual judgment. Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to reexamine your own views and change your opinion, if it is erroneous, but none of you should surrender your honest conviction as to the weight of the evidence solely because of the opinion of your fellow jurors or for the purpose of returning a verdict.\n\u201cThe instructions prescribed in [N.C. Gen. Stat.] \u00a7 15A-1235 . . . need not be given verbatim whenever a jury is deadlocked; rather, such instructions are guidelines, and the trial judge must be allowed to exercise his sound judgment to deal with the myriad different circumstances he encounters at trial.\u201d State v. Jeffries, 57 N.C. App. 416, 421, 291 S.E.2d 859, 862 (quotation omitted), disc. rev. denied, 306 N.C. 561, 294 S.E.2d 374 (1982). The challenged instruction substantially conforms to the guideline instruction in N.C. Gen. Stat. \u00a7 15A-1235. Id. This assignment of error should be overruled.\nIV. Restitution\nIn his final argument on appeal, defendant argues the trial court erred when it awarded restitution in the amount of $118.86 to the Newport Police Department. I agree.\nA state or a local agency can be the recipient of restitution where the offense charged results in particular damage or loss to it over and above its normal operating costs. It would be reasonable, for example, to require a defendant to pay the State for expenses incurred to provide him with court appointed counsel should he ever become financially able to pay. It would not however be reasonable to require the defendant to pay the State\u2019s overhead attributable to the normal costs of prosecuting him.\nShore v. Edmisten, 290 N.C. 628, 633-34, 227 S.E.2d 553, 559 (1976) (internal citations omitted).\nThe trial court awarded the Newport Police Department $118.86 based on the mileage attributable for the extradition and transportation of a co-defendant from Quantico, Virginia to testify for the prosecution in defendant\u2019s trial. The costs to bring a witness in to court to testify does not constitute an expense \u201cover and above [the State\u2019s] normal operating costs.\u201d Id. at 634, 227 S.E.2d at 559. \u201cIt [is] not... reasonable to require ... defendant to pay the State\u2019s overhead attributable to the normal costs of prosecuting him.\u201d Id. (citations omitted).\nBased on our Supreme Court\u2019s holding in Shore, the trial court erred when it awarded the Newport Police Department $118.86 in restitution. 290 N.C. at 633-34, 227 S.E.2d at 559. This portion of the trial court\u2019s judgment should be vacated.\nV. Conclusion\nDefendant waived his right to appeal the trial court\u2019s conversations with the foreman outside the presence of the other eleven jurors. Tate, 294 N.C. at 198, 239 S.E.2d at 827. Without objection to preserve the error or the assertion and argument of plain error, review of this assignment of error pursuant to N.C.R. App. P. 2 is appropriate in order \u201c[t]o prevent manifest injustice to [defendant] . . . .\u201d Defendant failed to show that the trial court\u2019s conversation with the foreman was an \u201cinstructional mistake\u201d to constitute plain error. Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quotation omitted).\nThe trial court properly instructed the jury pursuant to N.C. Gen: Stat. \u00a7 15A-1235(b). Jeffries, 57 N.C. App. at 421, 291 S.E.2d at 862. There was no error in the jury\u2019s verdict.\nThe trial court improperly awarded the Newport Police Department restitution in the amount of $118.86. This portion of the trial court\u2019s judgment should be vacated. Shore, 290 N.C. at 633-34, 227 S.E.2d at 559. In all other respects, there is no error in the jury\u2019s verdict or the judgment .entered thereon. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.", "L. Jayne Stowers for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEKKIE CONSTANTINE WILSON\nNo. COA07-1077\n(Filed 2 September 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object to constitutional issue at trial \u2014 Article I, Section 24 right to unanimous jury\nAlthough the State contends defendant did not preserve his argument for appeal regarding the trial court\u2019s unrecorded bench conferences with the jury foreperson at trial based on his failure to object to the trial court\u2019s unrecorded conversations, defendant is entitled to appellate review of this constitutional argument because, although our appellate courts generally do not review constitutional arguments for the first time on appeal, our Supreme Court has previously recognized an exception to this rule where a defendant alleges a violation of Article I, Section 24 regarding defendant\u2019s right to trial by a jury of twelve.\n2. Constitutional Law; Jury\u2014 right to unanimous jury \u2014 unrecorded bench conferences with jury foreperson\nThe trial court violated defendant\u2019s rights under Article I, Section 24 in an armed robbery case when it held unrecorded bench conferences with the jury foreperson because: (1) our appellate courts have recognized that a conviction cannot be based on a unanimous verdict of a jury as required by Article I, Section 24, where the trial court does not provide the same instructions to all twelve jurors, and subsequent case law has made clear that this type of violation occurs only when certain jurors receive one set of instructions and other jurors receive a different set of instructions; (2) in the present case, the trial court gave at least one critical instruction to the jury foreperson that it did not give to the rest of the jury, and the transcript indicated that it likely provided instructions to the jury foreperson at some point during the three unrecorded bench conferences; (3) the trial court instructed the foreperson not to discuss with the remaining eleven jurors the issues that they talked about at the bench and also openly on the record; and (4) the record demonstrated the trial court did not instruct all twelve jurors consistently.\n3. Constitutional Law; Jury\u2014 right to unanimous jury \u2014 automatic reversal based on numerical composition \u2014 harmless error analysis for unequal instructions\nHarmless error analysis is required in this case to determine \u25a0 whether defendant is entitled to a new trial in an armed robbery case based on the trial court holding unrecorded bench conferences with the jury foreperson because: (1) a violation of Article I, Section 24 requires automatic reversal only where a jury was improperly constituted in terms of its numerical composition, and a verdict rendered by a jury of less than twelve fully-participating jurors makes the verdict a nullity; and (2) a violation of Article I, Section 24 is subject to harmless error review where the error did not affect the numerical structure of the jury, but rather resulted in jurors acting on unequal instructions from the trial court in reaching the verdict.\n4. Constitutional Law; Jury\u2014 right to unanimous jury \u2014 motion for new trial \u2014 unrecorded bench conferences with the jury foreperson \u2014 harmless error analysis \u2014 failure to meet burden of proof \u2014 meaningful appellate review\nThe State failed to meet its burden of showing harmless error in an armed robbery case based on the trial court holding unrecorded bench conferences with the jury foreperson, and defendant is entitled to a new trial, because: (1) the transcript does not disclose the trial court\u2019s unrecorded bench conferences with the jury foreperson, nor did the trial court reconstruct the substance of those conferences for the record; and (2) without a record of the trial court\u2019s conversations with the jury foreperson, the Court of Appeals cannot exercise meaningful appellate review.\nJudge TYSON dissenting.\nAppeal by Defendant from judgments entered 2 February 2007 by Judge Jack W. Jenkins in Superior Court, Carteret County. Heard in the Court of Appeals 5 March 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.\nL. Jayne Stowers for Defendant." }, "file_name": "0359-01", "first_page_order": 387, "last_page_order": 404 }